Kingston v. Board of Supervisors

FRIEDMAN, J.

I concur in the result. Only the rub of time and new legislation, not the intrinsic or presumed correctness of the trial court judgment, justifies affirmance.

It is true, as the majority opinion points out, that petitioner has designated an appeal record consisting of little more than the judgment roll. Incorporated in the responsive pleading filéd by El Dorado County, thus included in the -judgment' roll, was a tabulation showing the following distribution of registered voters among the five supervisorial districts of El Dorado County in December 1962:

Percentagewise, this distribution is approximately as follows:

In the establishment of supervisor districts population, not equality of voter registrations, is the criterion. Experience tells us, however, that registered voter statistics supply a fairly adequate measure of population distribution. (See Griffin v. Board of Supervisors, 60 Cal.2d 318, 320 [33 Cal. Rptr. 101, 384 P.2d 421],¹ Thus, on the record before us, the most populous district of El Dorado County contains more than five times the inhabita]its of the least populous, more than three times the number of the next two and twice that of the remaining district. Only one district hovers in the neighborhood of the ideal arithmetical mean. Supervisors of the three least populous districts, representing about 35 per cent of the county’s population, can exercise controlling voting power on the board. Two supervisors, representing 21 per cent of the population, can block any measure requiring a two-thirds vote. A voter in District Number 1 has a still small voice in county government, his counterpart in District Number 4 an effective, powerful voice. .On the face of the matter, the maldistribution of population causes a serious dilution of suffrage, palpable discrimination and a substantial denial of equal protection of the laws.

In fairness to respondents, it should be observed that the situation in El Dorado County has been paralleled in a number of other California counties. Availability of mandamus proeeedings to compel supervisorial reapportionment was revealed in Griffin v. Board of Supervisors, supra, 60 Cal.2d 318, in which the State Supreme Court ordered rearrangement of malformed districts in Monterey County. That decision was filed on August 20, 1963. Later, in February 1964, the court approved a new districting plan for Monterey County, in which certain local conditions justified deviations from the mathematical norm. (Griffin v. Board of Supervisors, supra (fn. 1), 60 Cal.2d 751.²)

As a result of the Monterey County decisions, several superior courts within the Third Appellate District ordered county redistricting in time for the June primary elections of 1964. For all we know, other counties may have redistricted without judicial compulsion. Petitioner made his initial representations to the El Dorado County Board of Supervisors on August 22, 1963, two days after the first Griffin decision. The present action was heard by the trial court in December 1963, and judgment for the respondent was entered in January 1964. Had relief been granted, the serious denial of political equality could have been remedied in time for the primary and general elections of 1964. Denial of relief prolonged the inequity at least through the elections of 1966, possibly through the elections of 1968. Part of the board is elected in each even-numbered year and takes office the following January. (Gov. Code, §§ 24202, 25000.) If fair redistricting in El Dorado County were to take place immediately, a five-member board elected from revised districts would not be in office until January 1969. In appraising the judgment, we must view the matter from the same standpoint as did the trial court, that is, with reference to the 1964 elections.

Even on a judgment roll appeal, the opinion of the trial judge is an appropriate part of the record. (Cal. Rules of Court, rule 5(a).) That opinion describes two factors which entered into the judgment. The first was the testimony of the county planning director, who stated that District Number 3 (the western part of the county, adjoining Sacramento County) was growing faster than any other section and that the Tahoe area (in District Number 5) was “over developed.” The second factor was the report of a citizens’ advisory committee which concluded that population inequalities created no significant problem of adequate representation and that the existing districts conformed to factors of topography, geography, cohesiveness, contiguity, integrity, compactness and community of interest better than did some other proposal.

Both before and since its 1964 amendment, Government Code section 25001 has pointed to approximate equality of population as the primary standard of county redistricting. Other factors, such as topography, cohesiveness, and community of interest were and are secondary factors. In August 1963 (several months before the El Dorado citizens’ committee filed its report and four months before the trial court hearing in this case) the State Supreme Court had said that the latter factors had only a “subsidiary effect” and could not warrant large deviations from equality of population. (Griffin v. Board of Supervisors, supra, 60 Cal.2d at p. 321.) The Supreme Court was only echoing the obvious import of the statute. Refusal to redistrict in El Dorado County rested upon an inversion of these standards. The last of these standards became the first, and the first among them became the last. The record before us, while auguring better things to come, gives no hint of massive population shifts which might have restored constitutional and statutory integrity in time for the 1964 or even the 1966 elections. There is no mention of existing topographic, cultural and governmental considerations which might arguably justify existing swings from the ideal of approximate equality. (See Reynolds v. Sims, supra, 377 U.S. at pp. 579-581 [84 S.Ct. at pp. 1390-1392, 12 L.Ed.2d at pp. 537-539] ; Griffin v. Board of Supervisors, supra, 60 Cal.2d at pp. 754-755.) Indeed, it is difficult to conceive any legitimate considerations to justify the radical deviations present in El Dorado County.

In counterbalance to the mathematical facts conceded by the county’s pleading, the oral testimony described in the record had little relevance and less weight. Consequently, we should not presume that this testimony sustains or justifies the judgment. To the contrary, where error appears on the face of the judgment roll, we presume that the record includes all matters material to a determination of the appeal. (Cal. Rules of Court, rule 52.) The county’s own statistics demonstrated a palpable illegality in the conformation of supervisorial districts, which called for judicial relief.

In the absence of changed circumstances pending appeal, it would have been appropriate to reverse the judgment and remand this proceeding to the superior court with directions to retain jurisdiction to ensure compliance with the law within a reasonable time. That action would have rested on the premise that justice delayed is better than justice denied. Circumstances have now altered. While this appeal was pending, the Legislature enacted comprehensive legislation on the subject of supervisorial districting. (Gov. Code, §§ 25001-25002 (Stats., 1st Ex. Sess. 1964, ch. 40).) Like other county boards, the supervisors of El Dorado County are under a statutory mandate to adjust district boundaries by April 30, 1965, and if they fail to do so, a redistricting commission will take over. Exercising the discretion traditional in mandamus proceedings, we may now safely say that there is no point in superimposing a judicial mandate on top of the statutory mandate. (See Henderson v. Superior Court, 61 Cal.2d 883 [37 Cal.Rptr. 438, 390 P.2d 206].) The law being fully revealed, we may for present purposes assume that the supervisors of El Dorado County will follow it.

1 The second Griffin case, 60 Cal.2d 751, at p. 755 [36 Cal.Rptr. 616, 388 P.2d 888], shows us that the measure may become inaccurate in the presence of a large military population. There is no evidence of a significant military population in the case at hand.

2 Judieial and statutory sanctions for deviations from a strict population standard must now be reappraised in the light of the Fourteenth Amendment concepts described in the so-called ‘‘ Senate reapportionment” case. (Reynolds v. Sims, 377 U.S. 533 [84 S.Ct. 1362, 12 L.Ed.2d 506, dated June 15, 1964].) These concepts demand that divergences be based upon legitimate considerations incident to the effectuation of a rational . . . [public] policy, ...” (377 U.S. at p. 579 [84 S.Ct. at p. 1391, 12 L.Ed.2d at p. 537].) It seems logical to assume that equal protection concepts governing formation of state legislative districts are, in a general way, no less applicable to county legislative districts. As noted in Blotter v. Farrell, 42 Cal.2d 804, 811 [270 P.2d 481] (paraphrasing 19 Ops. Cal. Atty. Gen. 94, 97), the problem of population equality “exists whenever divisions of territory and population are made for the purpose of electing popular representatives. ’ ’